Sunday, October 30, 2005

Rashi understands the Gemara as teaching us that although a minor is capable of collecting the bread that serves as an eruv chatzeiros, he is incapable of making the "acquisition" that is the basis of eruv techumin. Tosafos (d.h. Kan) understand the Gemara differently, and that it is teaching us that since the prohibition of Techum Shabbos has a basis in Torah law, the Rabbis were stringent and did not allow it to be entrusted to a minor.

Tosafos raise the question that, if so, why are minors believed when they say a house has been checked and is chametz-free (Pesachim 4b)? Tosafos respond that it is only concerning the house in which the minor himself lives that the Rabbis credited his assertion that the house was checked, as the minor [assuming he is old enough to understand the issue of chametz – i.e., "he'gi'ah l'chinuch] feels that responsibility incumbent upon himself.The minor would not be believed, however, concerning a house other than his own — even if he was specifically delegated the responsibility of checking the other house.

In terms of practical Halachah, however, the Mishnah Berurah (Orach Chaim 537:16) rules that a minor is even believed when he tells us that a house other than his own home was checked (see Shaar HaTziyun ad loc. §19). This is because the primary reason that he is held to be credible is because the entire checking procedure is only a "back-up" to the primary procedure of Bittul — the negation of the chametz. However, accordingly, the minor is only believed in conjunction with Bittul. Hence, if it is already so late on Erev Pesach that Bittul is no longer effective, the minor is not believed either, and an adult must check the premises.

Beis Hillel's position is that the Rabbinic decree of eruvei techumin is uniform. Hence, although an adult may not partake of the food of the eruv on Yom Kippur, the eruv is nonetheless valid, since it is suitable for a minor. Similarly, although a nazir may not partake of an eruv of wine, it is nevertheless valid for him since others may partake of it.

The Ohr Somayach (Hil. Maachalos Asuros 17:27) notes that this position seems to conflict with the position of the Rashba that a minor is not subject to Rabbinic prohibitions, and that therefore it is even permissible for an adult to deliberately feed a minor a Rabbinically prohibited substance. If so, queries the Ohr Somayach, a minor is not subject at all to the prohibition that the eruv is meant to permit. [Thus, making an eruv for Yom Kippur on the basis of a minor's potential to partake of the eruv would seem no bettermaking an eruv on the basis of a non-Jew's potential to partake of the eruv, which is definitely not effective.]

In the end, however, the Ohr Somayach reconciles the position of Beis Hillel with the position of the Rashba. He explains that although the minor himself is not personally subject to the prohibition of Techum Shabbos in the sense that he is held liable if he violates the prohibition, the techum of all his possessions are subject to the techum. Hence, were the minor not to participate in an eruv techumin, all the objects he owns would remain forbidden to exceed the two thousand amos of his original techum. Indeed, posits the Ohr Somayach, it would seem that an adult is forbidden to move the minor beyond the child's own techum unless the child participated in an eruv. Thus, the minor may not be obligated to participate in an eruv techumin, but he is subject to one, and therefore he may serve as the basis for an eruv on Yom Kippur.

Later authorities clarify the parameter of this principle, and many of the sources are cited by R' Yosef Engel in Gilyonei HaShas here. For example:

This principle only applies when and where Chazal themselves applied it. Hence, we cannot apply it ourselves. Thus, Teshuvos Radbaz (2:652) states that he cannot apply any limitations to the generalization that a prophet can override the laws of the Torah on an ad hoc basis (hora'as sha'ah) other than the limitation stated by Chazal themselves, that it does not apply in cases of idolatry.

This principle applies not only to generalizations that appear in mishnayos, but also to generalizations that appear in gemaros. Thus, Teshuvos Ri MiGash (§81) states that the Gemara's generalization that the law is in accordance with Rabban Shimon ben Gamliel in any mishnah in which he is cited excepted for three cases is not to be taken as definitive.

This principle only applies to Talmudic sources. Thus, Teshuvos Chacham Tzvi (§55) states that it is not applicable to generalizations that appear in later Halachic works. Hence, we are permitted to extrapolate from the generalizations of the Poskim.

Bittul translates literally as nullification. Of course, generally, it is preferable to enact an eruvei chatzeiros [joint participation in bread, matzo or some other collection of food] from befors Shabbos when the members of a courtyard, street or town want to carry in their common domain. When there are non-Jews in the area, sechiras reshus [rental from the non-Jewish neighbors] must be put into effect as well. Bittul is a third manner of unifying separate reshuyos ha'yachid. Where eruvei chatzeiros was not performed before Shabbos began, one or more of the other Jewish residents of the enclosed area may nullify their rights in the common domain in favor of one of the residents on Shabbos. The latter resident and members of his or her household may then carry throughout the area, but the others may not. Slightly more advantageous is the case where several of the neighbors have participated in eruvei chatzeiros, but one or more of the other Jewish residents did not participate. [This is an unlikely case, since generally eruvei chatzeiros is put into effect by zechiah.1In making a blanket zechiah it is very unlikely that you might forget to include someone!] In this case, the participants in the eruvei chatzeiros would be allowed to carry to the exclusion of the neighbors who performed the bittul. In the final analysis, bittul is obviously not a very advantageous means of unification, and is therefore rarely used. The Halachos of bittul are to be found in Shulchan Aruch, Orach Chaim 380-381.

1.One person may take his own loaf of bread and grant the other residents ownership of it by way of the halachic device of “zechiah” [literally: bestowing ownership]. This procedure is relatively simple, and readily accessible in such common sources as the Kitzur Shulchan Aruch (94:6-7; see Shulchan Aruch, Orach Chaim 366:9).

Thursday, October 27, 2005

The Gemara here introduces the concept of “pi tikra yored v'sosem” (literally: the lip of a roof comes down and closes; see also 94b). The principle, as defined in the Shulchan Aruch,(Orach Chaim, 361:2), is that, when a roof is at least four tefachim by four tefachim and set atop two complete walls, we view the thickness of the roof as an imaginary wall for the remaining two sides. (To employ the principle of pi tikra the structure must have two walls adjacent to each other connecting at a corner, not two parallel walls, see Rama, Shulchan Aruch, Orach Chaim 361:2).

In one of the early works on eruvin in modern cities, the Tikvas Zecharia, Rabbi Zecharia Rosenfeld, the first Chief Rabbi of St. Louis, notes that telegraph poles often support a thicket of wires at their tops. These wires are well within three tefachim of each other. Viewing them, halachically, as connected, allows one to consider the thicket as a roof. One could then apply the principle of pi tikra yored v’sosem to them. In practice, however, Rabbi Rosenfeld does not utilize this approach in sanctioning the use of the telegraph poles and wires as halachic walls, preferring instead the already accepted trend to view them as comprising tzuros ha'pesach. He does, however, propose that the presence of these “roofs” along the length of a street will diminish their potential to be regarded as a reshus ha'rabbim, since roofed over reshuyos ha'rabbim are automatically downgraded to carmelis status. - see Nesivos Shabbos 3:1 and note 6, where he considers (inconclusively) how much of a roof is necessary to negate a reshus ha'rabbim.

Wednesday, October 26, 2005

The Dvar Shmuel (cited in the Biur Halacha 358:9, d.h.Aval Im Nizra) allows a karpaf consisting of planted fields within an eruv when the significance of the inhabited sector of the enclosure outweighs the significance of the uninhabited, planted sector. Most Poskim conclude, however, that the Dvar Shmuel’s leniency only applies to enclosures consisting of real walls. This ruling is, therefore, generally not relevant in modern urban settings. The Chacham Tzvi (siman 59, also cited there by the Biur Halacha) extended the Dvar Shmuel's leniency even to cases where a tzuras ha'pesach preceded the development of a karpaf (such as a planted field) within its perimeter. In the specific case discussed by the Chacham Tzvi, however, other mitigating factors were involved. See also Nesivos Shabbos 13:15 and note 50.

The Divrei Malkiel (Vol. 4 siman 3) and others rule that if an eruv was built around an area that contained a pre-existing karpaf, then the “hekef l'dira” (the act of enclosure for the purpose of enhancing human habitation) of the eruv enclosure counteracts the eino mukaf l'dira of the karpaf. Such an eruv is therefore valid. The case in question in that teshuva, however, concerned an area that was technically suitable for walking, however the gentile owner would not allow anyone to actually do so.

Furthermore, the Divrei Malkiel employs several additional reasons in validating the eruv that included this karpaf. It is therefore difficult to isolate one of his reasons and extrapolate a universal leniency based solely on that one reason.[3In Hilchos Eruvin 4:14, note 168, Rabbi Lange notes that the Biur Halacha, ibid., d.h. HaZera'im Mevatlim HaDira would apparently disagree with the Divrei Malkiel. Rabbi Lange therefore says that one may rely on the Divrei Malkiel's heter only “b'dochak gadol.”] The best solution is to exclude a questionable area from the eruv. Constructing a tzuras ha'pesach around the karpaf itself may accomplish this.

An area is considered eino mukaf l'dira [not enclosed for the purpose of habitation] if it is not an area designated for human habitation. We call such an area a karpaf. If a karpaf that is larger than five thousand square amos (a “beis se'asayim”) is included within an eruv it renders the entireeruv invalid (Shulchan Aruch, 358:9; see also Hilchos Eruvin 7:3-15; Yesodei Yeshurun, ibid., pp. 261-265; She'arim Metzuyanim B'Halacha 83:4-6 and the Kuntres Acharon there; Tzitz Eliezer 13:41; and Nesivos Shabbos 12-13).

The Poskim extend the definition of human habitation to include any use of the area in question for human needs. This would include parks and any other area suitable for walking or strolling, but not planted fields, unless there are walking paths between the furrows. Rabbi Akiva Yosef Kaplan noted that in the source of this Halacha, the Chacham Tzvi,siman 59, cited by the Sha’arei Teshuva, Orach Chaim, 358:8, it seems that it is not necessary that a pathway exist between the furrows, but rather only that it be possible to walk between the furrows. Rabbi Kaplan continued to posit that it seems sensible to assume that there must be a requirement of paths. Otherwise, there practically always exists at least some possibility of walking between the planted rows! Perhaps we might contemplate a “compromise” position: If a pathway exists, that certainly is sufficient. If no path exists, but permission can be secured from the owner of the property to walk at regular intervals through his field in ways that would diminish the “impassable” planted area to an area of less than beis se’asayim, that may nullify the karpaf problem as well. (More extensive discussions concerning the necessity and width of the path are to be found in Kesser Ephraim,siman 43; Hilchos Eruvin7:12 and note 165 there.)

Monday, October 24, 2005

Does the passage of many people through a wall render it invalid? — Eruvin 22a

(excerpted from The Contemporary Eruv)

Among the basic issues considered in the discussions of the Gemara in Messeches Eruvin are: a) asu rabbim u'mivatlei mechitzta - whether the passage of many people through a wall renders it invalid (Eruvin 20a and 22a.). We unequivocally accept that asu rabbim u’mivatlei mechitztadoes apply to natural walls. The question is whether this principle extends to artificial barriers as well.

The issue of asu rabbim u'mivatlei mechitzta is argued here by two Amoraim. Rabbi Yochanan holds that the passage of many people through a wall renders it invalid; Rabbi Eliezer disagrees. The Mishna Berura [Bi’ur Halacha 364:1, d.h. Ve'Achar She'asa La, see also Avodas Avoda on the Avodas HaKodesh 2:4, note 46] explains that this disagreement has major halachic consequences. If we were to accept Rabbi Yochanan's approach, it is likely that almost no urban tzuras ha'pesach eruv would be valid. Utility poles must inevitably cross over city streets, and the Mishna Berura posits that city streets fall into the category of asu rabbim. Only if we can rely on the approach of Rabbi Eliezer may such tzuras ha'pesach eruvin be valid - in his view, the masses do not invalidate the enclosure. The Rishonim do not provide a definite unambiguous ruling on this issue. It is, therefore, one of the subjects of the conflict between the Mishkenos Ya'akov - who decides in favor of Rabbi Yochanan's opinion; and the Beis Ephraim - who decides in favor of Rabbi Eliezer's opinion. The Mishna Berura writes that the lack of a clearcut lenient decision in the Rishonim is another reason that a Ba'al Nefesh should not rely on urban tzuras ha'pesach eruvin. The Aruch HaShulchan4 and Chazon Ish,5 however, both accept the ruling of the Beis Ephraim and rule, in practice: lo asu rabbim u'mivatlei mechitzta.

The definition of the traversing rabbim (masses) necessary to invalidate an enclosure according to Rabbi Yochanan is a major, unresolved, issue. The Aruch HaShulchan, ibid., 353:50, seems to hold that the definition of rabbim that are mivatlei mechitzta is the same amount as that which creates a reshus ha'rabbim. This would mean that only a street that already has the problem of reshus ha'rabbim will have the problem of asu rabbim u'mivatlei mechitzta. He seems, however, to contradict this position later (ibid., 354:1). See Nesivos Shabbos 25:11 and notes 42-45. (The Poskim who are inclined to be lenient note that the Rambam, Hilchos Shabbos17:33 evidently rules according to Rabbi Eliezer.)

R' Yosef Engel (Gilyonei HaShas) finds this assertion of the Gemara difficult. It would seem that Rabbinic decrees are not issued by Knesses Yisrael — the Jewish people upon themselves, but rather by their leaders, the Sages, upon them?

Initially R' Yosef Engel suggests that perhaps Knesses Yisrael refers to the Sages themselves, not to the general population. As evidence he cites Rashbam to Pesachim 118b (d.h. Amrah Knesses Yisrael) who indicates this to be the case.

Alternatively, he suggests, the Sages are the representative legislative body of the general population, and hence any decree they enact is as it if is enacted by the totality of Knesses Yisroel.

However, ultimately R' Yosef Engel concludes that the Gemara's assertion here is best understood in light of the principle that the Sages cannot enforce a decree that they decree unless the majority of the general population tolerates the decree [אין בית דין גוזרין גזירה על הציבור אלא א"כ רוב הציבור יכולין לעמוד בה] (see Yerushalmi, Avodah Zarah 2:8). This is the reason why the attempt made by the Sages to ban oil pressed by a non-Jew failed (see Igros Moshe, Orach Chaim 2:100 that this is also a reason why it may no longer be forbidden to clap and dance on Shabbos). Thus, the effectiveness of any decree is primarily determined by the popular sentiment and by popular acceptance. Hence, it is indeed Knesses Yisrael that decrees decrees upon itself

R' Yehuda and Rabbanan (the other Sages) dispute the underlying basis of the device of “pasei bira’os” (“boards surrounding wells”). This dispute, in Eruvin 20a and 22a, concerns an enclosure consisting of four two-sided posts (of at least an amah width in each direction and ten tefachim height), which, taken together, form the corners of a square. The purpose of this enclosure was to allow travellers to Yerushalayim for the Yomim Tovim who had to camp on the road over Shabbos to access wells — that, because of their dimensions were reshuyos ha'yachid — on Shabbos. The pasei bira’os served to enclose an area around the well and render it a reshus ha'yachid. (There are several criteria that must be met in order to utilize pasei bira’os, see Nesivos Shabbos Chap. 14. Nevertheless, when and whether one may make use of them in practice is a separate question from whether they create a reshus ha'yachid d'oraysa in the area that they enclose. They do indeed, regardless of whether there is an actual well in the enclosed area or not.)

R' Yehuda held that pasei bira’os were not effective if they were positioned in the middle of a reshus ha'R'm, because asu R'm u’mevatlei mechitzta — masses walk through it, and masses negate walls

. Rabbanan, however,were of the opinion that the pasei bira’os are even effective when positioned in the middle of a reshus ha'R'm, because lo asu R'm u’mevatlei mechitzta — the masses walking through the walls do not negate them. The Rambam follows the opinion of Rabbanan. Other Rishonim disagree. For example, the Hashlama (printed in the Shabsai Frankel edition - Yerushalayim, 1975 - of the Yad HaChazaka) decides in favor of R' Yehuda's opinion. Hence, according to the Rambam, the requirement for doors on a reshus ha'R'm that has valid tzuros ha'pesach - or any other form of enclosure that suffices me’d'oraysa - is only d’rabbanan: Since, me’d'oraysa, the masses travelling through a wall do not invalidate it, a requirement to impede their movement must, perforce, be d’rabbanan - see Chazon Ish, ibid., 74:1-3.

The Mishkenos Ya’akov, however, in accordance with his view that the Halacha follows Yehuda’s opinion, denies that the Rambam’s intent is to rule according to Rabbanan. He asserts that the Rambam may have meant only to allow pasei bira’os on a highway that is not a true reshus ha'R'm (Orach Chaim siman 121, p. 119 in the Sheinberger -Yerushalayim 1960 - edition). He concedes, however, that none of the Rishonim understood the Rambam in this vein. Rather, they all understood that the Rambam accepted the view of Rabbanan.

Friday, October 21, 2005

The Gemara here relates that during the 130 years between the murder of Kayin and the birth of Sheis, Adam gave birth to רוחין ושידין ולילין — spirits, demons and lilliths [another kind of demon]. Yet, as is well known, the Rambam's position is that there are no such things as demons. How does he deal with this Gemara?

In Moreh Nevuchim 1:7, Rambam deals with this very Gemara. He explains that the concept of Tzelem Elokim with which Man was created is his intellectual capacity — and, with it, the pursuit of perfection by way of that intellectual capacity. People who do not seek to develop their minds in quest of perfection lack Tzelem Elokim. Such people are animals in human form — indeed, they are worse, as they possess an intellect with which they can perpetrate evil. It was to such people, says the Rambam, that Adam gave birth until Sheis was born, who then continued the heritage of Tzelem Elokim from Adam.

Alternatively, R' Avraham the son of the Rambam writes in his Maamar al Derashos Chazal that stories which involve demons occurred in a kind of prophetic vision [albeit a vision that did not involve specific communication from Hashem], in a person's mind. Accordingly, it may be that this Gemara refers to Adam's mindset for those 130 years in which he felt rejected by Hashem — his mind was incapable of productive, spiritual thought, but was mired in negative and harmful visions.

An area that is surrounded by an enclosure and not roofed over, similar in appearance to a courtyard (Rama, Shulchan Aruch, ibid., 346:3) of which use is not made is known as a karpaf. As the Gemara here (Eruvin 17a) rules, it is forbidden to carry in any enclosure that includes karpaflarger than a beis se’asayim [5000 square amos in any shape]. Albeit, any enclosure, even one that was not enclosed with the intent to render the area suitable for habitation [the definition of suitable for “habitation” is rather broad, and requires a separate analysis].is, nevertheless, considered a reshus ha'yachid me’d'oraysa. The Sages, however, banned one from carrying an object four amos within such a karpaf, lest one come to carry in a reshus ha'rabbim. Nevertheless, it is permissible to transfer an object from a karpaf to another type of carmelis next to the karpaf, such as to an area encompassing many cultivated fields. This is permitted even though the karpaf is technically a reshus ha'yachid me’d'oraysa [while the area encompassing many cultivated fields is a carmelis me’d'oraysa]. Although the Sages generally forbade transferring objects from a reshus ha'yachid to a carmelis, in this case they allowed such activity, for were they to ban it, people might mistakenly conclude that a karpaf is a reshus ha'yachid even me’d’rabbanan, and would therefore come to carry objects within the karpaf indiscriminately. It was therefore deemed better to permit the relatively uncommon activity of transferring objects from a karpaf to a carmelis - so as to bolster the prohibition of carrying within the karpaf - than to prohibit that activity, lest people then [mistakenly] allow themselves to engage in the far more common activity of carrying objects within the karpaf. This, in turn, could lead people to carry in an actual reshus ha'rabbim. Therefore, if a walled garden larger than a beis se’asayim not designated for habitation adjoins an area encompassing many cultivated fields, it is permissible to take a key from that adjacent area, open the door to the garden, and place the key within the garden.

Lavud – Eruvin16b

(excerpted from The Contemporary Eruv)

Overhead cables often weave back and forth. One of the most relevant question concerns the following case: Three utility poles, each consisting of an upright pole and a crossbar across the top, stand in a row. The overhead cable runs directly across the first and third pole in the row, but is connected to the crossbar of the middle pole. Here, even when at rest, the cable does not run directly from lechi to lechi.

Rabbi Meir Arik (Imrei Yosher 2:133. See also Yesodei Yeshurun, ibid., pp. 282-283) submits that a lenient approach may be in order if the cable is within three tefachim of a hypothetical straight line. He explores the possible application here of the halachic mechanism of “lavud” (literally: “connected”). Halachically, two objects within three tefachim of each other are considered connected. Here, we would view the cable as "connected," i.e., repositioned, to its proper hypothetical straight line. Questions, however, may be raised concerning this approach. Rabbi Aryeh Pomeranchek(Emek Bracha, Sukkah, siman 18) identifies only two classifications of lavud, neither of which are applicable to our case. One type of lavud allows us to regard any object within three tefachim of another object as if it were connected to that other object; the other type of lavud – the type employed here, Eruvin 16b) allows us to regard the space between two objects as closed and/or blocked. Lavud does not allow us to reposition an object to a place within three tefachim of its actual location, which would be necessary to correct this problem.

Many Poskim rule that the presence of a tzuras ha'pesach allows even breaks that are longer than ten amos. However, according to the Rambam this leniency does not apply to [a scenario] where the enclosure is made up of more open space than built up structure [parutz merubeh al ha’omed].

Tosafos, however, assert that even if an area’s enclosure consists entirely of tzuros ha'pesach made up of four poles planted in the ground at the four corners [of the area] and a lintel atop them that is a sufficient enclosure.

Generally, the Ashkenazic custom is to rely on the Tosafos while the Sephardic custom is to be stringent in accordance with the Rambam.

Every one agrees that even a gap that is less than ten amos wide can also invalidate an enclosure even if it does not take up an entire side - if there is more open space than wall-like structure on that side of the eruv.

Shulchan Aruch, ibid., 362:8-9. The Maharal, Eruvin 11a, and others suggest that we determine omed merubeh on the basis of the entire perimeter. Since the Shulchan Aruch rules there that omed k’parutz is sufficient, if the entire enclosure was at least 50% wall-like structure, then gaps of up to ten amos anywhere along the perimeter would not invalidate the eruv. The Mishna Berura 362:45, however, rules that we must also take each side independently. Thus, the side in which the gap exists must in and of itself be omed k’parutz in order to allow a gap of less than ten amos without any additional rectification. As we have mentioned, there are many Poskim that do not take tzuros ha'pesach into account in making this determination (see Nesivos Shabbos 14:15 and note 33). Thus, to allow breaks of up to ten amos would require actual wall-like structure over at least 50% of the entire perimeter of the eruv, and over the length of each side of the eruv as well. See Nesivos Shabbos 14:7-16 for more details on how to reckon the omed vs. the parutz.

Rabbi Yosef Menachem Mendel Rapoport and Rabbi Avrohom Moshe Seidman, noted, however, that the Maggid Mishne 16:16 (cited in the Beis Yosef, Orach Chaim, towards the end of siman 362, d.h. U’Ma She’Kasav u’Bilvad) seems to hold that each side must be taken independently even according to the Rambam (see also Sha’ar Ha’Tziyun 363:7). It is not clear, however, that this is, indeed, the portent of the Maggid Mishne,

The Avnei Nezer, Orach Chaim §291 proves that a tzuras ha'pesach need not be recognizable. He proves this from the Gemara's ruling here that there is no maximum height above which a tzuras ha'pesach is invalid, even though the Gemara (in parallel discussions both at the beginning of Messeches Eruvin and at the beginning of Messeches Sukkah)states that the eye does not discern that which is above twenty amos.

However, Pri Megadim, Orach Chaim 363:19 states that when the tzuras ha'pesach incorporates a gud aseik [the halachic principle of “gud asek mechitzta” (literally: extend the walls up) creates imaginary lines directly up from the top of a lechi to an overhead cable —these imaginary lines may be drawn from any point on the top of a rod or a barrel, and if any of these imaginary lines hit the cable overhead, we may view the barrel or rod as the lechi for the tzuras ha'pesach ] there may not be a gap of twenty amos between the top of the barrel or other object used as a lechi and the overhead cable. Nevertheless, it is not clear whether this chumra is universally accepted l’halacha, asMishnah Berurah 362:62, in discussing the parameters of gud aseik, omits Pri Megadim's ruling.

Thursday, October 20, 2005

Eruvin 10b: “The open space on both sides [of the structure] comes and cancels it.”

The Gemara here introduces the rule of “asi avira d’hay gisa u’d’hay gisa u’mevatel lei” (Eruvin 10b; Shulchan Aruch, 363:34). This principle translates as: “The open space on both sides [of the structure] comes and cancels it.” The simplest application of this principle is a case where on one side of a walled enclosure there is an open space of, say, six amos, then a standing structure of five amos, then again an open space of six amos. In this case, the five amos long structure is negated by the surrounding open space and the open spaces combine to create a pirtza of more than seventeen amos. This principle applies even if the open space on one side is equal in length to the structure, as long as the space on the other side is somewhat longer. There are many complex variations of this problem, especially when an eruv has a series of contiguous structures and open spaces. See the details in Hilchos Eruvin 6:3-7 and Nesivos Shabbos 14:7.

Accordingly, Rashba here notes that the principle of omed merubeh al ha'parutz that allows us to treat a side of an enclosure that is mostly fenced as if it is completely fenced is only operative if the fences begin at the corners, or are structured in some other way that prevents segments of the fence from being cancelled by surrounding airspace.

Wednesday, October 12, 2005

The Magen Avraham (363:28) states that the walls that surround three sides of an alley (a “mavoi”) cannot be considered the lechayayim for a tzuras ha'pesach on the courtyard's fourth side. The Magen Avraham does not explain the rationale for his ruling (see Nesivos Shabbos 19:17, note 39). A possible interpretation of the Magen Avraham's position is that lechayayim cannot exceed a certain maximum shiur (measurement). See the Chazon Ish, ibid. 70:16. The Chazon Ish there raises the possibility that in certain cases the maximum shiur is three or four tefachim. Under normal circumstances, however, it seems that the maximum shiur is four amos. See Nesivos Shabbos, ibid., note 40, in the name of the Makor Chaim. Structures that long are no longer viewed as the “door posts” (lechayayim) of a “door frame” (tzuras ha'pesach) - they are walls. Elevated train line embankments or overpasses that are more than four amos long would therefore not be halachically suitable to serve as lechayayim. The Chelkas Ya'akov 1:166.4 presents arguments that would allow the use of “long” lechayayim such as embankments that support elevated train lines. Some rabbinic authorities follow the Chelkas Ya’akov’s ruling in this area. The Chelkas Ya’akov’s reasoning and proofs, however, are controversial and difficult to follow, and seem not to be in accordance with the opinions of the Poskim mentioned previously in this paragraph. See also Nesivos Shabbos19:17 and note 39. However, Rabbi Yosef Menachem Mendel Rapoport noted that the Teshuvos Maharsham, Orach Chaim 1:207 holds that a lechi may be broader than four amos (and, for that reason, he allows a tzuras ha’pesach to cross over a house). The Chazon Ish, Yoreh Deah 172:1, also questions the Makor Chaim’s stringency in this area (see below, page 91, note 184).

An unrectified gap that is wider than ten amos invalidates an enclosure - even if the rest of the eruv is omed merubeh al ha'parutz. If a gap that wide exists in an eruv, it must be rectified by a tzuras ha'pesach.[Shulchan Aruch, ibid., 362:9. See the Mishna Berura there, 362:52. The Chazon Ish (Orach Chaim 107:5) holds that me’d'oraysa, omed merubeh al ha'parutz overrides a gap even if it is greater than ten amos. The Igros Moshe, ibid., 5:28:3 rejects this Chazon Ish, and holds that the breaks of more than ten amos invalidate the enclosure even me’d'oraysa (if they are not rectified by tzuras ha'pesach). Reb Moshe’s reasoning here is unclear. See the attempt by the editors of this, the latest volume of the Igros Moshe, there to clarify the issue.]

A gap that is narrower than ten amos may also invalidate an enclosure - if it takes up an entire side (i.e., direction, north, south, east or west) of the eruv - unless the gap is on the fourth side of the eruv, in which case, as we have seen (Chapter I, Section 3), posts or beams suffice.[Shulchan Aruch, ibid., 363:1. See also Bi’ur Halacha 362:8, d.h. Parutz Merubeh and Nesivos Shabbos 14:6 and note 13.]

In his analysis of the definition of reshus ha'rabbim, the Aruch HaShulchan, Orach Chaim 345:14-22 takes this concept to a further extreme, and states that there are essentially no reshuyos ha'rabbim in our times. He opines that an essential component of the definition of reshus ha'rabbim is that it serve as the central thoroughfare (sratya) or plaza (platya), for the entire city. Since none of our cities have one central thoroughfare that constitutes the main access route to and from the city, nor do they have one central plaza that serves to amass the population of the city - à la the Machane Levi’ah in the desert - there are no longer any true reshuyos ha'rabbim in our midst. Many Poskim will only use the Aruch HaShulchan’s opinion as an additional reason to be inclined toward leniency (a “snif”) when there are other mitigating factors. See Igros Moshe, Orach Chaim, 5:28:9 and Nesivos Shabbos 3:1, note 9.

The Rashba (Avodas HaKodesh 3:1) - and others, see the Avodas Avoda there note 2 - holds that there are halachic distinctions between the two types of reshus ha'rabbim mentioned in the Gemara: A “sratya” - thoroughfare - and a “platya” - central public square or market. While doors serve to block a thoroughfare and render it a reshus ha'yachid, they do not render a public square a reshus ha'yachid. The generally accepted understanding of the Rashba’s position is that a platya is not a reshus ha'rabbim because of a high volume of traffic - which may, indeed, be prevented by doors - but, rather, by the presence of a static multitude - upon which doors obviously have no impact. According to the Rashba, even when Yerushalayim was fully walled and doored, the public squares within the city retained their character as reshuyos ha'rabbim and carrying remained prohibited in those areas (although not in other streets of the city, as noted by the Sefer HaBattim, Sha’ar Sha’arei Issur Hotza'a 1:15 in his explanation of the Rashba’s position).

Most sources argue with the Rashba, and the final, accepted ruling is that delasos are effective in rendering a platya a reshus ha'yachid. (See the Avodas Avoda, ibid., that even the Rashba may concede the point where the platya itself - as opposed to the surrounding city - is surrounded by doors).

Monday, October 10, 2005

Halacha distinguishes between the enclosure necessary to convert a carmelis into a reshus ha'yachid and the enclosure necessary to convert a reshus ha'rabbim into a reshus ha'yachid. The Gemara[1] relates that Yerushalayim would have been considered a reshus ha'rabbim had its doors not been closed at night.[2] The Poskim disagree over whether these doors had to have been closed me'd'oraysa or me'd'rabbanan.[3] Some sources maintain that me'd'oraysa a tzuras ha'pesach would have sufficed.[4] Others maintain that in reshus ha'rabbim delasos are required me'd'oraysa.

This requirement is limited, in any event, to reshus ha'rabbim. An enclosure intended to surround an area that fall into the category of carmelis does not require doors to allow carrying therein. The rectification of tzuras ha'pesach is sufficient in such cases. Clearly, therefore, it is highly advantageous to have an area defined halachically as a carmelis as opposed to a reshus ha'rabbim. Besides the lesser expense involved in building a tzuras ha'pesach as opposed to doors, another issue we may thus avoid is the problem involved in the use of doors that cannot be closed at night. Such doors are not completely comparable to the doors of Yerushalayim - which were closed at night. Thus, physically or legally eliminating true reshuyos ha'rabbim from an eruv averts the complex halachic problem of the extent to which the doors must be suitable for closing.[5]

[2]According to most Poskim, a reshus ha'rabbim must be enclosed by delasos (doors) because otherwise, asu rabbim u'mivatlei mechitzta ‑ the passage of the masses through the wall (were it to be just a tzuras ha'pesach) would render it invalid. We will discuss this concept in Section 6 below. The question is whether this concept negates a wall on a d'oraysa or d=rabbanan level. See also Rabbi Chaim Gedalya Tzimbalist's Avodas Avoda (Tel Aviv, 1973 - this work is outstanding in its explanation of the various approaches in Messeches Eruvin -) on the Avodas HaKodesh 3:1, note 2 and Tosefes Biur siman 1.

[4]We must note that this is not the only source in the Gemara for the requirement of doors for a reshus ha'rabbim. We will learn of Poskim who hold that even had it not had doors, Yerushalayim would not necessarily have been a reshus ha'rabbim. Even these Poskim, however, derive from other sources that a reshus ha'rabbim d'oraysa requires delasos. See Nesivos Shabbos, ibid., note 1.

See Eruvin 94b for more detail on pi tikra. In the Tikvas Zecharia, Rabbi Rosenfeld of St. Louis notes that telegraph poles often support a thicket of wires at their tops. These wires are well within three tefachim of each other. Viewing them, halachically, as connected, allows one to consider the thicket as a roof. One could then apply the principle of pi tikra yored v=sosem to them. In practice, however, Rabbi Rosenfeld does not utilize this approach in sanctioning the use of the telegraph poles and wires as halachic walls, preferring instead the already accepted trend to view them as comprising tzuros ha'pesach. He does, however, propose that the presence of these Aroofs@ along the length of a street will diminish their potential to be regarded as a reshus ha'rabbim, since roofed over reshuyos ha'rabbim are automatically downgraded to carmelis status. - see Nesivos Shabbos 3:1 and note 6, where he considers (inconclusively) how much of a roof is necessary to negate a reshus ha'rabbim

When the Head and Most of the Torso are in the Sukkah, but the Table is in the House

Eruvin 13b

The Gemara here teaches us that, according to Beis Shammai, a person who sits and eats with his head and most of his torso in the Sukkah but with his table in his house, he does not fulfill the mitzvah of Sukkah. Although the prohibition to sit in this manner is rabbinic in origin, the implication of the Gemara is that the person sitting in the Sukkah in this manner does not even fulfill his obligation on a Torah level (see Tosafos to Sukkah 3a. d.h. D’Amar). How can the Rabbis deprive a person of his fufillment of a Torah mitzvah?

Bigdei Sheish suggests that the mitzvah of Sukkah is unique in this respect. This is because the mitzvah of Sukkah is defined in the Torah (Vayikra 23:42) as:בַּסֻּכֹּת תֵּשְׁבוּ שִׁבְעַת יָמִים — In Sukkos you shall sit for seven days.Chazal explain that in this verse:תֵּשְׁבוּ — you shall sit — asתשבו כעין תדורו — you shall sit, as you dwell (see Sukkah 28b et al). Thus, even if a Sukkah is built properly in all its aspects, so long as the sitting therein does not fulfill the definition of dwelling one does not fulfill the mitzvah.

That the Rabbis possess the right to define whether the criterion of dwelling has been fulfilled is derived by Pri Megadim (Pesichah Kolleles to Orach Chaim, beginning of section #3) from the Torah’s statement (Devarim 17:10) that:וְעָשִׂיתָ... וְשָֽׁמַרְתָּ לַֽעֲשׂוֹת כְּכֹל אֲשֶׁר יוֹרוּךָ — And do... and maintain to do according to all they direct you [to do]. Thus, the Rabbis have the authority to determine the definition of dwelling. Hence, in taking into account a possibility that a person whose table is in house may be drawn outside his Sukkah, they determined that this could not be considered a valid form of dwelling, and that the person sitting in such a manner cannot be regarded as fulfilling the mitzvah of sitting in a Sukkah, even on a Torah level.

Monday, October 03, 2005

The Gemara states here that vows may only be annulled on Shabbos is their anullment is l’tzorech Shabbos — essential for Shabbos — i.e., if those vows affect the proper observance of that specific Shabbos on which they are to be annulled.

Hence, Teshuvos HaRivash #394 has difficulty with our recitation of Kol Nidrei on Yom Kippur. The vows that we ask Hashem to annul in the Kol Nidrei do not affect the observance of Yom Kippur in any way. Why, then, is it permitted to recite the Kol Nidrei on Yom Kippur?

First, Rivash notes that the proper version of Kol Nidrei is the one in which it takes the form of a condition concerning future vows (from this Yom Kippur until next Yom Kippur). This is the case, despite the request for forgiveness that is included in the Kol Nidrei — as it would seem somewhat out of the ordinary to request forgiveness on sins not yet committed! (Rivash explains that this request pertains to possible cases in which a violation of a vow will be inadvertant, and that for which a person therefore might not realize he needs forgiveness.) He continues to prove from several aspects of the language used in Kol Nidrei that it is not an annullment, but rather a stipulation, or perhaps a request for atonement. Since that is the case, it is not an actual annullment, and therefore may be performed on Shabbos or Yom Tov.

He acknowledges that Rosh does maintain that Kol Nidrei pertains to past vows, and suggests that perhaps Rosh holds that since this annullment is meant to request atonement for violated vows, that it is tzorech ha’yom — i.e., essential for the day of atonement. Alternatively, the time for Kol Nidrei is generally fixed slightly before the actual onset of Yom Kippur — and thus the annullment is not taking place on Shabbos or Yom Tov.

(It is interesting to note that in the final analysis Rivash is opposed to the recitation of Kol Nidrei altogether, as he fears that its recitation leads people to regard taking vows lightly. He notes that in Catalonia it was never said at all.)

The Gemara here teaches us that although it is forbidden to drive a donkey (mechamer) or work any other animal on Shabbos, a person who does so deliberately is not subject to the death penalty, nor is a person who drives his donkey in error subject to an obligation to bring a chatas sin-offering. Thus, mechamer differs from the thirty-nine melachos, which are subject to these penalties. Moreover, although the person who deliberately drives his donkey on Shabbos is in deliberate violation of a prohibition, he is not subject to the penalty of lashes generally imposed on those who violate Torah prohibitions. [Rambam (Hil. Shabbos 20:1) explains that this is because the prohibition to drive a donkey is derived from the positive command to allow animals to rest on Shabbos (Shemos 23:12), and there are no lashes for a prohibition that is derived from a positive command ( לאו הבא מכלל עשה אין לוקין עליו ) — see the next law there (20:2) for the reason why the general negative command that forbids working one’s animal together with all forms of forbidden melachah on Shabbos (Shemos 20:10) does not generate the penalty of lashes (taken from the Gemara here, 154a-b).]

On the basis of our Gemara, Meshech Chochmah (to Bamidbar 4:3) explains an interesting discrepancy in the Torah’s language. In that pasuk, which describes the recruitment of the Levite family of Kehas we read: כָּל־בָּא לַצָּבָא לַֽעֲשׂוֹת מְלָאכָה בְּאֹהֶל מוֹעֵֽד — the word melachah appears. However, concerning the tasks of the family of Gershon we read (ibid. 4:24): זֹאת עֲבֹדַת מִשְׁפְּחֹת הַגֵּֽרְשֻׁנִּי לַֽעֲבֹד וּלְמַשָּֽׂא , and concerning the tasks of the family of Merari we read (ibid. 4:31): וְזֹאת מִשְׁמֶרֶת מַשָּׂאָם לְכָל־עֲבֹֽדָתָם בְּאֹהֶל מוֹעֵד . In both these places the word melachah does not appear.

Meshech Chochmah notes that the family of Kehas was required to physically carry the items from the Mishkan for which they were responsible, while the families of Gershon and Merari placed the items that were their responsibilities on carts that were led by oxen. Hence, if the task of the family of Kehas would have been performed on Shabbos, it would constitute a violation of the melachah of hotzo’oh; while the tasks of Gershon and Merari would constitute a violation of mechamer. Since only hotzo’oh can be categorized as a melachah, the Torah only used the word melachah in conjunction with the tasks of the family of Kehas.